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FBI GETS TASTE OF SCANDAL; INATTENTION: REPORT ON PROBLEMS AT THE FBI'S CRIME LAB HAS SHOWN THAT THE AGENCY SAT ON A MANAGERIAL TIME BOMB.

THE BALTIMORE SUN

It's not over for the Federal Bureau of Investigation, not by a long shot. The FBI's handling of problems in its crime lab, detailed in a withering report by the Justice Department last week, amounts to an FBI "Tailhook," the aviator drinking party that ballooned into a major scandal, sunk the Navy's top officers and forever changed the culture of America's oldest and most elite military service.

As in Tailhook, the FBI bomb lab's problems began when it ignored the complaints of one of its own, an FBI scientist. As with the Navy, FBI lab management has already been decimated and the reputation of the vaunted unit irrevocably tarnished. The scandal's next victim is likely to be the embattled director, Louis J. Freeh, who responded sluggishly to a managerial timebomb that had been ticking for years only four floors below his office .

But that's only the beginning. The verdicts in hundreds, if not thousands, of federal and local trials are at stake, including some of this century's biggest cases: the World Trade Center bombing, the Oklahoma City trial that recently started and the Unabomber case. The upshot could be a real-life Batman's Gotham, with the thugs turned free because of FBI malfeasance.

"The prevailing culture of the lab - examiners not properly performing or documenting tests, preparing inaccurate reports, testifying about matters beyond their expertise and much more - suggests that thousands of prosecutions may have been tainted," said Judy Clarke, president of the National Association of Criminal Defense Lawyers. Clarke, a federal public defender in Spokane, Wash., has been assigned to represent the suspect in the Unabomber case, Theodore J. Kaczynski.

Likewise, the World Trade Center defense team is nearly salivating at the prospects of successfully appealing last year's conviction, according to the New York Times - an appeal no doubt given impetus by the Justice Department's finding that FBI lab agent David Williams "tailored" his testimony against the defendants and "based some of his conclusions not on valid scientific analysis, but on speculation." Other lab officials' handling of the trade center bombing evidence was harshly criticized in the report.

Williams also worked on the 1995 Oklahoma City bombing case, in which he "tilted" his reports to incriminate defendants, the Justice Department said. Stephen Jones, the lawyer for suspect Timothy J. McVeigh, has vowed to impeach the conduct of Williams and other FBI lab employees who may have contaminated evidence in the case, raising the prospect of the colorful Oklahoma attorney exhorting the jury "to acquit, if the reports don't fit."

The Justice Department report also confirmed a Perspective piece I wrote for The Sun in April 1996: that FBI lab data in the Unabomber case was, at least back then, a mess. In 13 attacks attributed to the Unabomber between 1978 and mid-1995, the data handled by the lab was "either not in the files or poor," an internal review had found, raising the prospect of a fatally flawed case even before a suspect was arrested.

The lead prosecutor in the case said Wednesday that he wouldn't rely on any of the Unabom evidence handled by Terry Rudolph, a now-retired FBI supervisor. Criticisms of Rudolph by Frederic Whitehurst, a lab agent turned whistle-blower, go as far back as 1986.

An intense, mustachioed Vietnam combat veteran who holds a doctorate in chemistry from Duke University, White- [See FBI, Page 8f] hurst also had been inflamed by Rudolph's alleged boasts that "all the examiners in the laboratory had perjured themselves and he himself had," according to a complaint Whitehurst lodged with the FBI inspector general. Whitehurst set out to re-examine every piece of work Rudolph had done for the lab, and found numerous errors.

But the FBI dug in its heels. That bullheaded response was the start of a pattern that would continue for nearly a decade, until Whitehurst surfaced in the last hectic days of the O. J. Simpson criminal trial, subpoenaed by the defense to challenge the FBI's blood analysis.

Judge Lance A. Ito blocked that testimony, but outside the courthouse, the burly agent vented his complaints about FBI lab work in the World Trade Center and other matters, setting off a media firestorm. At that point, Attorney General Janet Reno stepped in and assembled a panel to examine Whitehurst's charges - something that should have been done years earlier. But back in the 1980s, there wasn't any heat on the lab - at least not the kind generated by the Simpson trial. Whitehurst's complaints were bottled up inside the building, from as far back as 1989, when he successfully raised complaints about the lab's handling of evidence in the trial of a San Francisco man accused of conspiring to assassinate Philippines President Ferdinand E. Marcos.

The defendant was acquitted as a result and the lab severely rebuked by the prosecutor. FBI bosses suspended Whitehurst without pay for a week and put him on probation for six months, but Rudolph, stayed on the payroll.

After an investigator recommended that Rudolph be officially reprimanded, his boss duly delivered an oral lecture - and handed him a $500 bonus, according to last week's official report.

Responses like that only accelerated Whitehurst's rage against the FBI machine. Pounding on a laptop late into the night in his La Plata home, the FBI man launched a stream of emotional memos - to his bosses, to the FBI's Office of Professional Responsibility, to the FBI inspector general, the Justice Department inspector general and to members of the Senate Judiciary Committee - complaining about the lab's handling of evidence in a mounting number of cases, including, eventually, the Oklahoma City bombing.

Whitehurst's complaints fell on deaf ears, however, or resulted in halfhearted internal investigations, the Justice Department found.

In April 1995, even though he was still rated the FBI's "unrivaled" explosives expert, according to his fitness report, Whitehurst was transferred out of the bomb lab and reassigned - at more than $90,000 a year - as a trainee in the paint analysis unit. His bosses also sent him to mandatory psychiatric evaluations, all of which found him fit for duty although suffering from "stress." In his spare time, he worked toward a law degree at Georgetown University.

Top FBI lab managers, meanwhile, continued with business as usual, the Justice Department found, shrugging off their own inspector general's reports that changes needed to be made.

Why were Whitehurst's complaints ignored? Why would lab managers - and FBI Director Freeh - ignore the cancer growing on the lab?

First, FBI sources say - and the Justice Department report underscores it - lab managers themselves were primarily responsible for the skewed reports and mishandling of evidence.

They had no interest in pursuing reforms that would result in their own dismissals. But in a larger context, many sources say, the FBI lab was suffering a culture clash.

For years the bomb lab had been staffed and run by agents with little or no academic training in the complex chemistry and physics of explosions. They were detectives who earned their spurs investigating the crime scenes of civil rights, anti-war or airline bombings. Most, like Tom Thurmond, the explosives unit chief, were brilliant bomb-scene sleuths, but ill-equipped for the sophisticated analysis of explosive residues.

Likewise, the chief of the chemistry/toxicology unit, Roger Martz, had merely an undergraduate degree in biology, and tended to resent criticism by his academic bettors.

Similar deficiencies were found in other lab agents singled out for criticism in the report. Their lack of academic training, fused with an eagerness to help fellow street agents solve cases, may have compromised their objectivity, even supporters of the lab managers concede.

Into that crusty culture came the rigid and reputedly self-righteous academic scientist Whitehurst, to whom scientific objectivity, not solving cases, was paramount. Whitehurst did not suffer fools gladly. A clash was inevitable, the resistance to change fatal.

The Justice Department concluded that Martz "lack[ed] the judgment and credibility to perform in a supervisory role" in the lab. It singled out Thurmond for "special censure" in relation to the Oklahoma City bombing case, particularly his "inadequate supervisory review of [David] Williams' work." Williams has been transferred out of the lab, along with several others.

Just minutes before the report was released Tuesday, Whitehurst predicted that he would be vindicated. In a fashion, he was: The lab's work was found to be seriously flawed in more than a dozen cases, and several managers and examiners have been recommended for demotion, reprimand or both. For the first time, the lab is seeking outside scientific accreditation, one of Whitehurst's original goals. And for the first time, the lab will soon be run by a scientist.

But Whitehurst was shocked to find that the report criticized him severely as well, and put his own future at the FBI in doubt.

"He ... accused many of his colleagues of perjury, fabrication of evidence and conspiracy," the report stated. "Those allegations were not supported by the facts uncovered in the investigation."

Whitehurst's "frequently overstated and incendiary way of criticizing" people, and his "lack of judgment and common sense" would make it "extremely difficult if not impossible for him to work effectively with the laboratory," the report said.

Whitehurst called that "shooting the messenger."

In fact, the official foot-dragging continues, in a manner of speaking. Thorough as far as it went, the Justice Department report went only so far: It pursued only the specific allegations that Whitehurst made, and focused only on three of the 23 units that comprise the FBI lab.

It was "not a criminal investigation," Inspector General Michael R. Bromwich emphasized. And although investigators heard of problems in other lab units, particularly the polygraph unit, none was addressed in the report.

What happens next? Much of that is in the hands of Reno, who has said that 55 cases were identified as potential problems for the government so far.

Should she fail to pursue those strenuously, such critics as Sen. Charles E. Grassley, an Iowa Republican who has been escalating his attacks on the FBI, is likely to pick up the slack.

But Reno's number may only represent the tip of the iceberg. Every case the FBI bomb lab has handled may well be challenged.

As anchorman Charlie Gibson asked a legal expert on "Good Morning America" on Wednesday, "What about the other cases going back to the '80s, '70s and '60s? Are all those cases going to be called into doubt?"

Good question.

One thing for sure: Just like the Navy when Tailhook exploded, the FBI lab is in for a long, rough voyage. And like the Navy, it will survive - much changed.

Jeff Stein is a former deputy foreign news editor for UPI. He wrote about the FBI lab in the April issue of Playboy.

Pub Date: 4/20/97

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